Orissa High Court
Tulsidas Modi And Anr. vs State Of Orissa on 10 March, 1986
Equivalent citations: 1986(I)OLR415
JUDGMENT K.P. Mohapatra, J.
1. In this criminal revision the petitioners have challenged the order passed by the learned Sub-Divisional Judicial Magistrate, Khurda, refusing to drop charges under Sections 7 and 10 of the Essential Commodities Act ('Act' for short).
2. The prosecution case shortly stated is that petitioner No. 1, father of petitioner No. 2 (both accused) was the licensed wholesale dealer for kerosene authorised to carry on business at Malgodown, Cuttack. On 27.11.1978 he effected a fictitious transaction of sale of 8500 litres of kerosene to a non-existent, person named Bairagi Charan Sahu of village Kalapathar in Banki Sub division of Cuttack District describing him as a retail dealer of kerosene. As a matter of fact, he transported the stock of kerosene by a tanker lorry to Nirakarpuf in Khurda Sub division of Puri district and unauthorisedly sold the same to a retail dealer of kerosene of Puri district named, Siyaram Agarawala (accused). When accused Siyaram Agarawala was confronted by the Inspector of Police (Vigilance), Khurda, who had lodged the first information report, he could not produce valid documents for purchase of a huge stock of kerosene, On the aforesaid allegations, after the Investigation, charge-sheet was submitted against the petitioner, accused Siyaram Agarawala, driver of the tanker lorry accused Pramod Kumar Swain and another employee accused Rama Chandra Jena.
3. On 7.9.1983 the lower Court framed charges against all the accused persons under Sections 7 and 10 of the Act. On 12.1.1984 and 23.2.1984 the petitioners made two applications before the lower Court praying for dropping of the case against them on the grounds that taking of cognisance of the offences against them was barred by limitation under the provisions of Section 468 of the Code of Criminal Procedure ('Code' for short). By application of the provisions of Section 12A(2) of the Act the alleged offences were to be tried summarily by a judicial Magistrate of the first class specially empowered in that behalf by the State Government. M/s. Tulsidas Modi being a proprietorship firm Section 10 of the Act was not applicable. By the impugned order, the learned Sub-Divisional Judicial Magistrate negatived all the contentions.
4. Mr. Arijit Pasayat learned counsel appearing for petitioners raised the following two contentions :
1) The learned Sub-Divisional Judicial Magistrate Khurda exercising ordinary powers of a Judicial Magistrate of the first class and having not been specially empowered by the State Government to try the offences in a summary way as contemplated in Section 12A(2) of the Act, the case cannot be tried in that Court.
2) The offences alleged against the petitioners being punishable under Section 8(1)(a)(i) of the Act which prescribes the maximum sentence of imprisonment which may extend to one year, cognisance of the offences could not be taken after expiry of limitation of one year as provided in Section 468(2)(b) of the Code.
The contentions require careful examination.
5. In order to examine the correctness of the first contention and for easy reference, it is necessary to quote the relevant extracts of Section 12A(2) of the Act:
"(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences relating to :
a) the contravention of an order made under Section 3 with respect to:
(i)XX XX XX (ii) foodstuffs, including edible oil seeds and oils; or (iii)XX XX XX b) XX XX XX
shall be tried in a summary way and by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government........."
On a plain construction of the aforesaid provision contravention of an order made under Section 3 of the Act relating to an offence with regard to foodstuffs, including edible oil seeds and oils, has to be tried in a summary way by a judicial Magistrate of the first class specially empowered in that behalf by the State Government. Indisputably the learned Sub-Divisional Judicial Magistrate Khurda was not accordingly specially empowered.
6. Mr. Arijit Pasayat contended that the word 'oils' appearing in Sub-clause (ii) includes 'kerosene oil' and so an offence relating to kerosene oil shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government. The contention is fallacious.
The State Government in exercise of powers conferred by Section 3 of the Act framed Orissa Kerosene Control Order, 1962 (hereinafter referred to as the 'Order') which came into effect on 3.12.1962. No provision was made in the Order that an offence relating to kerosene and/or for contravention of any of the provisions of the Order including the conditions of the licence shall be tried in a summary way by a Judicial Magistrate of the first class. specially empowered in that behalf by the State Government. What is more important to notice from the Order is that kerosene has not been defined or described as an "oil". Although people commonly refer to kerosene as 'kerosene oil it is actually not an "oil" as defined in Section 2(a)(v) of the Act, according to which, "essential commodity", inter alia, means foodstuffs including oil seeds and oils". The same expression has been used in Section 12A(2)(a)(ii) of the Act. It is therefore, apparent that the word oils has been used with reference to "foodstuffs", thereby connoting that, it has reference only to "edible oils and not kerosene which, though commonly called "oil" is not edible. In view of the above discussion with reference to the provisions of the Act, I am firmly of the view that Section 12A(2) Is not applicable for an offence with regard to kerosene and/or for contravention of any of the conditions of the Order including the conditions of the licence. The first contention is accordingly not tenable.
7. Now coming to the second contention, it is apparent on the face of the record that the alleged offences were committed on 27.11.1978. The charge-sheet was received in Court on 28.2.1981 and on the same day cognisance of the offences was taken, obviously, more than a year after the occurrence had taken place. Petitioner No. 1 was a licensed wholesale dealer of kerosene and according to the conditions of the licence issued to him, his place of business was at Malgodown Cuttack Condition No. 7 of the licence made it obligatory on his part to issue to every customer a correct receipt giving the name the licence number, the date of transaction, the quantity sold, the rate at which sold and the total amount charged. He was also liable to keep a duplicate of the receipt to be available for inspection on demand by any officer authorised under Clause 12 of the Order. During investigation it transpired that a way bill was prepared showing sale of 8500 litres of kerosene at a price of Rs. 10,914/- by petitioner No. 1 to Bairagi Charan Sahu of Kalapathar on 27-11-1978 and transported in the tanker lorry bearing registration No. O. R. J. 1241. Bairagr Charan Sahu was a non-existent person and the stock could not be sold by petitioner No. 1 to a non-existent person. As a matter of fact, by showing sale of a huge stock of kerosene to a nonexistent person petitioner No. 1 had transported the same to Nirakarpur beyond Cuttack district on the same day and sold the entire stock of 8500 litres of kerosene for a sum of Rs. 10,200/- to accused Siyaram Agarwala of M/s. jagdish Prasad Siyaram. M/s Jagdish Prasad Siyaram had a kerosene retail licence for. Khurda Sub-division but during investigation it came to light that the said firm had no authority to purchase 8500 litres of kerosene from petitioner No. 1. To top all, petitioner No. 1 explained in writing to the Civil Supplies Officer Cuttack that as Bairagi Charan Sahu was not available at Kalapathar his employee was compelled to return from the said place and while returning, he turned towards Nirakarpur and delivered the stock of kerosene to Omprakash Siyaram of Nirakarpur. Condition No.7 of the wholesale licence of petitioner No.1 put an obligation on him for sale of kerosene to an existing retail dealer, but not to a nonexistent person. As sale was shown to have been effected in favour of a non-existent person, but the stock of kerosene was actually sold unauthorisedly in favour of another, there is little doubt that condition No. 7 of the licence was violated which is punishable under Section 7(1) of the Act.
8. Mr. Arijit Pasayat urged that this case is covered by penal Section 7(1)(a)(i) of the Act which prescribes maximum sentence of imprisonment for one year. Section 7(1)(a)(i) is applicable only in respect of an order made with reference to Clause (h) or Clause (i) of Sub- Section (2) of Section 3. Clause (h) reads as follows .
"(h) for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters."
Any of the aforesaid matters" refers to Clauses (a) to (g) of Sub- Section (2) of Section 3, Obviously, in this case the alleged offence did not relate to contravention of any Order for collecting any information or statistics with a view to regulating or prohibiting any of the matters covered by Clauses (a) to (g). Clause (i) is quoted below for easy reference :
" (i) for requiring person engaged in the production, supply or distribution of, or trade and commerce in any essential commodity, to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto, as may be specified in the order."
This case did not relate to non-maintenance of accounts and records or for non-production thereof for inspection. On the other hand as already stated earlier, it is a case of violation of condition No. 7 of the wholesale licence by showing fictitious sale of a huge stock of kerosene to a nonexistent person though effecting sale thereof unauthorisedly to another. Therefore, Section 7(1)(a)(i) which prescribes the maximum term imprisonment upto one year is not applicable to this case Clause (ii) thereof which prescribes the maximum term of imprisonment upto sever years is applicable. Section 468(2)(b) which prescribes the period of limitation of one year for taking cognisance is consequently not applicable to this case. On the other hand Clause (c) thereof which prescribes the period of limitation for three years for taking cognisance is applicable. In this case cognisance of the offences having been taken within three years of the date of the alleged offences. Section 468 of the Code is not a bar. This contention is also without any merit.
9. It is distressing to note from the records of the case including the charge-sheet that two employees of petitioner No. 1 named, Pramod Kumar Swain and Ram Chandra Jena were implicated as co-accused and further charges were framed against them. Patently, they had nothing to do with the sale of kerosene. They were mere employees who carried out orders of their master and could not deny to do so If they did they would have lost their jobs. In such circumstances, it was not lawful to implicate them as co-accused in this case and to frame charges against them under Sections 7 and 10 of the Act read with Section 109/34 I. P. C. It will be abuse of the process of the Court if such person in a case of this nature are brought before the Court to suffer the agony of a protracted trial. Therefore, although they have not approached this Court patently on account of poverty, in exercise of inherent powers under Section 482 of the Code I deem it expedient to quash the charges against them.
10. Before parting with the case I would like to make it clear that none of the observations made in this judgment should influence the learned Sub-Divisional Judicial Magistrate who will try the offences and I am sure that he shall be strictly guided by their merits.
11. For the foregoing reasons, though the charges framed against accused Pramod Kumar Swain and Rama Chandra Jena are quashed, the criminal revision is dismissed.